MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 16 2019, 5:43 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David Wemhoff Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Harold E. Chastain, October 16, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-2799 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Stephen R. Appellee-Respondent. Bowers, Judge Trial Court Cause No. 20D02-1801-PC-3
Mathias, Judge.
[1] Following his convictions for Class C felony intimidation with a deadly weapon
and Class B misdemeanor battery, Harold E. Chastain (“Chastain”) filed a
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 1 of 15 petition for post-conviction relief in Elkhart Superior Court. The post-
conviction court denied Chastain’s petition. Chastain appeals and presents two
issues, which we restate as: (1) whether the post-conviction court clearly erred
in determining that Chastain was not denied the effective assistance of trial
counsel; and (2) whether the post-conviction court clearly erred in rejecting
Chastain’s claim that he did not knowingly and intelligently waive his right to
testify on his own behalf.
[2] We affirm.
Facts and Procedural History
[3] The facts underlying Chastain’s convictions were set forth by this court on
direct appeal as follows:
[O]n the evening of March 8, 2013, Justin Beegle was waiting for a table with his family at the Between the Buns restaurant in Elkhart. Beegle heard Chastain loudly arguing with a woman, Tracy Wilmore, in the parking lot, and, after he saw Chastain shove her, Beegle decided to intervene. He began walking toward Chastain and Wilmore. Chastain noticed Beegle walking toward him and said, “do you have a f***ing problem?” Tr. p. 237. Beegle stopped walking when he was about ten to fifteen feet from Chastain and had some argumentative words with Chastain. Chastain started walking toward Beegle, who told Chastain, “you don’t want to do that . . . .” Id. at 238. Chastain then turned around, went to his truck, retrieved a handgun, cocked and pointed it at Beegle, and then said “I’ll f***ing kill you” several times. Id. Beegle responded by telling Chastain he was a “f***ing p***y.” Id. at 265. The encounter ended shortly thereafter when Chastain got in his truck and drove away.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 2 of 15 Chastain v. State, 58 N.E.3d 235, 236–37 (Ind. Ct. App. 2016), trans. denied. As a
result of this encounter, the State charged Chastain with Class C felony
intimidation, Class D felony pointing a firearm, and Class B misdemeanor
battery. Id. at 237.
[4] At Chastain’s jury trial, two neutral eyewitnesses testified that they heard
Chastain threaten his girlfriend Wilmore; specifically, they heard him yell “shut
your f**king mouth,” and “I’m going to f**king kill you.” Trial Tr. Vol. 1, pp.
44, 46, 116. These witnesses also testified that when Beegle approached
Chastain and Wilmore, Chastain stated to Beegle, “do you want a piece of
this[?]” and “I’ll shoot you.” Id. at 49, 120. When Beegle responded by telling
Chastain, “you don’t want to do that,” Chastain retrieved a handgun from his
truck, cocked it, and pointed it at Beegle, who testified that Chastain repeatedly
told him, “I’ll f**king kill you.” Id. at 238.
[5] Chastain’s girlfriend testified that, when Beegle approached them, she told him
to leave. She further testified that before he retrieved his handgun, Chastain told
her that Beegle had a knife. She also testified that Chastain removed the
ammunition magazine from his handgun before pointing it at Beegle. Another
of Chastain’s friends, who was present that night, testified that he did not see a
knife and that Chastain did not tell him that Beegle had a knife the night of the
incident. However, this friend explained that he “heard about a knife later on.”
Trial Tr. Vol. 2. p. 341. Beegle admitted that he carried a knife clipped on his
belt but denied brandishing or even touching the knife on the night in question.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 3 of 15 Neither of the two neutral witnesses saw a knife or heard anyone mention a
knife during the confrontation between Chastain and Beegle.
[6] Chastain’s trial counsel called as witnesses Beegle’s ex-girlfriend, who was
dating Beegle at the time of the incident, and the ex-girlfriend’s father. Both of
these witnesses testified, for purposes of impeaching Beegle’s testimony, that he
later told them he pulled his knife on Chastain and that Chastain pulled a gun
on him in response. Trial Tr. Vol. 2, pp. 352, 363. The trial court instructed the
jury to consider these statements only for purposes of impeaching Beegle’s
testimony that he did not brandish the knife.
[7] Toward the end of the trial, Chastain’s counsel requested a break to allow
Chastain “an opportunity to make a final call” regarding whether he would
testify on his own behalf. Trial Tr. Vol. 2, p. 453. The court recessed and
resumed its proceedings forty-two minutes later. Chastain did not testify.
[8] In his closing statement, Chastain’s trial counsel argued that Chastain acted in
self-defense after Beegle brandished his knife. He argued that the neutral
eyewitnesses were too far away to see the knife and noted that Chastain told
others that Beegle had a knife. He also mentioned that the testimony of Beegle’s
ex-girlfriend and her father indicated that Beegle later admitted to them that he
did pull his knife that night.
[9] The jury found Chastain guilty as charged, but the trial court vacated the
pointing a firearm conviction at sentencing. Trial Tr. Vol. 3, p. 595. On the
Class C felony conviction, the court sentenced Chastain to six years, suspended
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 4 of 15 to probation; on the Class B misdemeanor conviction, the trial court sentenced
Chastain to 180 days, suspended to probation.
[10] On direct appeal, Chastain argued that the State had presented insufficient
evidence to convict him of Class C felony intimidation. After analyzing several
cases interpreting the intimidation statute, we concluded:
[A]s held by this court in Roar [v. State, 52 N.E.3d 940 (Ind. Ct. App. 2016)], and as adopted by our supreme court,[1] a conviction under the intimidation statute should not depend upon a precise parsing of the threatening language used by a defendant or a detailed timeline of when a threat was issued in relation to a prior lawful act. Here, it is clear that Beegle engaged in a prior lawful act, and there was a clear nexus between that act and Chastain’s threat to kill Beegle while pointing a gun at him. Thus, there is sufficient evidence to support the jury’s finding that Chastain committed the crime of intimidation while drawing or using a deadly weapon.
Chastain, 58 N.E.3d at 241.
[11] On January 17, 2018, Chastain filed a petition for post-conviction relief,
alleging ineffective assistance of trial counsel and prosecutorial misconduct with
regard to discovery. The post-conviction court held an evidentiary hearing on
Chastain’s petition on August 23, 2018. At the hearing, Chastain and his trial
counsel testified. Chastain testified that his trial counsel informed him of his
1 Our supreme court granted transfer in Roar and “adopt[ed] and incorporate[ed] that portion of the Court of Appeals’ opinion addressing the sufficiency of the evidence in accordance with Indiana Appellate Rule 58(A)(1)[.]” Roar v. State, 54 N.E.3d 1001, 1002 (Ind. 2016). Our supreme court summarily affirmed the remaining portion of our opinion. Id. (citing App. R. 58(A)(2)).
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 5 of 15 right to testify but claimed that his counsel had not prepared him to testify.
Chastain also testified that, during trial, he could not decide whether he should
testify but that he now wished he had testified:
After – after the fact and understanding a lot more of how it all works through the court systems, how the actual proceedings take place, I wish I would have seen a few live trials in real life to see how it actually works. Uh, the preparedness of witnesses and the fact that the evidence was not completely given to the jury or the court to – after the fact, it was very clear to me that nobody testified to [Beegle] having the knife during the trial. It’s a huge part of the trial.
Post-Conviction Tr. p. 27. On October 29, 2018, the post-conviction court
entered findings of fact and conclusions of law denying Chastain’s petition.
Chastain now appeals.
Post-Conviction Standard of Review
[12] Our standard of review for claims that a post-conviction court erred in denying
relief is well settled. The post-conviction petitioner bears the burden of
establishing grounds for relief by a preponderance of the evidence. Willoughby v.
State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied. When a petitioner
appeals the denial of a petition for post-conviction relief, the petitioner stands in
the position of one appealing from a negative judgment. Id. On appeal, we do
not reweigh evidence nor judge the credibility of witnesses; therefore, to prevail,
Chastain must show that the evidence in its entirety leads unerringly and
unmistakably to a conclusion opposite that reached by the post-conviction
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 6 of 15 court. Id. Where, as here, the post-conviction court makes findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we
do not defer to the court's legal conclusions, but the “findings and judgment will
be reversed only upon a showing of clear error—that which leaves us with a
definite and firm conviction that a mistake has been made.” Henley v. State, 881
N.E.2d 639, 644 (Ind. 2008).
I. Ineffective Assistance of Trial Counsel
[13] Chastain contends that his trial counsel was ineffective for a variety of reasons.
“[C]ounsel’s performance is presumed effective, and a defendant must offer
strong and convincing evidence to overcome this presumption.” Kubsch v. State,
934 N.E.2d 1138, 1147 (Ind. 2010). A claim of ineffective assistance of trial
counsel requires a showing that: (1) counsel’s performance was deficient by
falling below an objective standard of reasonableness; and (2) that the deficient
performance prejudiced the defendant such that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
694 (1984); Kubsch, 934 N.E.2d at 1147. Failure to satisfy either of the two
elements will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind.
2002). When it is easier to dispose of an ineffectiveness claim on the lack of
prejudice, then this is the course we should follow. Trujillo v. State, 962 N.E.2d
110, 114 (Ind. Ct. App. 2011). Moreover, “[i]solated mistakes, poor strategy, or
bad tactics do not necessarily amount to ineffective assistance of counsel.”
Herrera v. State, 679 N.E.2d 1322, 1326 (Ind. 1997) (citations omitted).
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 7 of 15 [14] Here, Chastain contends that his trial counsel was constitutionally ineffective
because he failed to call Chastain as a witness. As a result of this failure,
Chastain contends that the only substantive evidence that Beegle drew a knife
was not presented to a jury, thereby hamstringing his claim of self-defense.
[15] It has long been the law in Indiana that “[t]he determination of whether a
defendant should testify is a matter of trial strategy.” White v. State, 25 N.E.3d
107, 134 (Ind. Ct. App. 2014) (citing Whitener v. State, 696 N.E.2d 40, 42 (Ind.
1998)), trans. denied. It has also been held, however, that the right to testify is
personal to the defendant and may not be waived by counsel as a matter of trial
strategy. Moore v. State, 655 N.E.2d 1251, 1254 (Ind. Ct. App. 1995) (citing
United States v. Curtis, 742 F.2d 1070, 1075 (7th Cir. 1984)). We take this to
mean that, if a defendant wishes to testify, trial counsel cannot prevent him
from doing so as a matter of trial strategy. And the corollary of this rule is that
trial counsel also cannot force a client to testify if he does not wish to do so.
Ultimately, the question of whether to testify belongs to the defendant.
[16] Here, there is no evidence to suggest that Chastain’s counsel prevented him
from testifying. Chastain admitted that his trial counsel informed him of his
right to testify. See Post-Conviction Tr. p. 22 (in response to question “Did [trial
counsel] explain anything about testifying?” Chastain responded, “He said I
had the right to testify.”). Moreover, the trial transcript shows that trial counsel
received an extended recess to discuss with Chastain his decision of whether to
testify. See Trial Tr. Vol. 2, p. 453 (trial counsel requests a recess to allow
Chastain “an opportunity to make a final call” regarding whether he would
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 8 of 15 testify on his own behalf). When the trial resumed, Chastain did not testify.
From this, it can reasonably be inferred that Chastain chose not to testify.
Indeed, at the post-conviction hearing, he frankly admitted that he was unsure
of whether to testify during his trial but, in hindsight, wished he had. This
supports the post-conviction court’s determination that Chastain’s trial counsel
was not ineffective. He clearly gave Chastain the choice of whether to testify,
and Chastain chose not to do so. Chastain’s after-the-fact regret does not mean
that his trial counsel was ineffective.
[17] Still, Chastain argues that his testimony would have been the only substantive
evidence regarding whether Beegle brandished his knife and that his trial
counsel should have prepared him to testify and called him as a witness to
establish this fact.2 He notes that, although Beegle’s ex-girlfriend and her father
testified that Beegle told them that he pulled his knife on Chastain, the trial
court admitted this evidence only for impeachment purposes. While this is true,
it ignores the fact that Chastain’s girlfriend testified that, before Chastain
retrieved his handgun, he told her that Beegle had a knife. Another of
Chastain’s friends testified that he heard about the knife “later on.” Trial Tr.
Vol. 2. p. 341. And Beegle admitted that he was carrying a knife but denied ever
pulling it out during his confrontation with Chastain. Thus, assuming that the
2 In support of his argument that he was not adequately prepared to testify, Chastain cites Tison v. State, No. 82A01-0904-PC-179, 2009 WL 3161404 (Ind. Ct. App. Oct. 2, 2009), trans. denied, which is an unpublished memorandum decision. We remind appellant’s counsel that, pursuant to Indiana Appellate Rule 65(D), a memorandum decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or law of the case.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 9 of 15 jury obeyed the trial court’s instructions to consider the testimony of Beegle’s
ex-girlfriend and her father for impeachment purposes only,3 the jury also heard
other substantive evidence that Beegle had a knife.
[18] Furthermore, even if Chastain’s counsel did advise him not to take the stand,
such advice was not unreasonable given Chastain’s criminal history. At the
time of trial, Chastain had a prior conviction for Class A misdemeanor
conversion (he was originally charged with Class D felony theft) and two prior
convictions for Class A misdemeanor battery. Accordingly, had he testified on
his own behalf, Chastain would have been subject to impeachment based on his
conviction for conversion. See Ind. Evidence Rule 609(a) (providing that
evidence of a witness’s prior conviction for a crime of dishonesty is admissible
to impeach the witness); Johnson v. State, 671 N.E.2d 1203, 1206 n.3 (Ind. Ct.
App. 1996) (holding that defendant’s prior conviction for criminal conversion
was admissible for impeachment purposes under Evidence Rule 609(a)), trans.
denied; Winegar v. State, 455 N.E.2d 398, 401 (Ind. Ct. App. 1983) (holding that
conversion, as a lesser included offense of theft, is a crime of dishonesty, and
thus, a conviction for conversion may be admissible for impeachment
purposes).
[19] Additionally, had he testified, Chastain’s prior convictions for battery may have
been admissible to rebut his claim of self-defense, thereby weakening his case.
3 See Hernandez v. State, 785 N.E.2d 294, 303 (Ind. Ct. App. 2003) (noting that we will presume that the jury will follow the court’s admonitions to consider evidence for a particular purpose), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 10 of 15 See Poindexter v. State, 664 N.E.2d 398, 400–01 (Ind. Ct. App. 1996) (holding
that trial court did not err in admitting, under intent exception to Evidence Rule
404(b), evidence of defendant’s prior batteries to rebut her claim of self-
defense).
[20] For similar reasons, we cannot say that Chastain established that he was
prejudiced by his failure to testify. The jury heard evidence that Beegle had a
knife during the encounter. Had Chastain testified, his own self-serving
testimony would likely have been impeached by his prior convictions. His
testimony would not have been corroborated by the neutral eyewitnesses who
did not see Beegle in possession of a knife. Thus, Chastain has not established
that, had he testified, the outcome of the trial would have been any different.
[21] In short, the post-conviction court did not clearly err in determining that
Chastain was not denied the effective assistance of counsel based on his trial
counsel’s failure to call Chastain as a witness.4
II. Waiver of the Right to Testify
[22] Chastain also argues that the post-conviction court failed to address his claim
that there was no proof that he knowingly and intelligently waived his right to
testify on his own behalf. In addressing this argument, we first note that
Chastain did not present any claim regarding the knowing and intelligent
4 We also reject Chastain’s argument that his trial counsel was ineffective for failing to prepare him to testify. Chastain fails to explain what advantage such preparation would have provided, especially in light of his prior convictions that would have impeached his testimony. And given that Chastain did not testify, we cannot fault trial counsel for failing to prepare for something that did not happen.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 11 of 15 waiver of his right to testify in his post-conviction petition. See Appellant’s App.
pp. 11–13.5 The failure to present an argument in the petition waives the right to
raise the argument on appeal. Koons v. State, 771 N.E.2d 685, 691 (Ind. Ct. App.
2002), trans. denied. Chastain did not present a claim that he did not knowingly
or intentionally waive his right to testify until the conclusion of the post-
conviction hearing, see Post-Conviction Tr. p. 81, and in his post-hearing
memorandum. See Appellant’s App. pp. 42–45, 53. We therefore conclude that
Chastain has waived any argument regarding his waiver of his right to testify.
[23] Furthermore, Chastain frames his argument as whether the post-conviction
court “failed to address the issue of whether Mr. Chastain’s waiver of his
Constitutionally protected right to testify on his own behalf was done
knowingly, voluntarily and intelligently.” Appellant’s Br. at 27. This appears to
be a free-standing claim of error, which is generally unavailable in post-
conviction proceedings. Timberlake v. State, 753 N.E.2d 591, 597–98 (Ind. 2001).
That is, if an issue was known and available, but not raised on direct appeal, it
is waived; if it was raised on direct appeal, but decided adversely, it is res
judicata. Lee v. State, 91 N.E.3d 978, 983 (Ind. Ct. App. 2017), trans. denied
(citing Timberlake, 753 N.E.2d at 597–98). Even allegations of fundamental
5 The grounds for relief listed in Chastain’s petition were: (1) ineffective assistance of trial counsel by failing to call Chastain as a witness; (2) ineffective assistance of trial counsel for failing to adequately consult Chastain regarding him testifying; (3) ineffective assistance of trial counsel for failing to properly question witness Tracy Wilmore and failing to call as a witness Matt Wilmore; (4) ineffective assistance of trial counsel for failing to properly question witness Elizabeth Beegle; (5) ineffective assistance of trial counsel for failing to properly question witness Destinee Jenkins; (6) the policies of the prosecuting attorney’s office violated Chastain’s due process rights; and (7) ineffective assistance of trial counsel for failing to sign a discovery agreement with the prosecutor’s office.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 12 of 15 error are improper as free-standing claims of error in post-conviction
proceedings. Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). “In post-
conviction proceedings, complaints that something went awry at trial are
generally cognizable only when they show deprivation of the right to effective
counsel or issues demonstrably unavailable at the time of trial or direct appeal.”
Id.
[24] Here, there is no indication that Chastain’s argument that he did not knowingly
or intelligently waive his right to testify was unknown or unavailable to him on
direct appeal. Therefore, it cannot be presented as a free-standing claim of error
in his petition for post-conviction relief.
[25] However, Chastain also appears to couch his argument regarding the waiver of
his right to testify in terms of the ineffective assistance of trial counsel. See
Appellant’s Br. at 30 (discussing prejudice prong of Strickland test). Out of an
abundance of caution, and our preference to decide issues on the merits, we
address Chastain’s argument in the context of a claim of ineffective assistance
of trial counsel.
[26] As we explained in Vanzandt v. State, 730 N.E.2d 721, 723 (Ind. Ct. App. 2000):
The right to testify on one’s own behalf in a criminal proceeding has been described by the United States Supreme Court as “a right implicit in the Constitution.” United States v. Dunnigan, 507 U.S. 87, 96 (1993). See also Baxter v. State, 522 N.E.2d 362, 368 (Ind. 1988) (“In light of all of these cases, we accept Baxter’s claim that his right to testify is constitutionally based.”). However, a trial court judge has no affirmative duty to insure
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 13 of 15 that a defendant represented by counsel knowingly and intelligently waived his right to testify at trial. Correll v. State, 639 N.E.2d 677, 681-82 (Ind. Ct. App. 1994). A trial court is entitled to presume that a lawyer and his client have discussed the possibility of testifying. Phillips v. State, 673 N.E.2d 1200, 1202 (Ind. 1996).
[27] Chastain argues that he did not knowingly and intelligently waive his right to
testify because his trial counsel did not adequately consult with him or prepare
him to testify. This argument is belied by the evidence in the record. First,
Chastain admitted that his trial counsel informed him that he had a right to
testify. He also testified that he and his trial counsel discussed the possibility of
his testifying on his own behalf. The trial transcript also shows that Chastain’s
trial counsel was granted an extended recess to discuss with Chastain whether
he would testify, and when the trial resumed, Chastain did not testify. From
this, the post-conviction court could reasonably conclude that Chastain
knowingly and intelligently waived his right to testify. The post-conviction
court was under no obligation to credit Chastain’s self-serving testimony to the
contrary. Accordingly, the post-conviction court did not err by failing to
conclude that Chastain did not knowingly and intelligently waive his right to
testify.
Conclusion [28] The post-conviction court did not clearly err in concluding that Chastain failed
to meet his burden of proving that he was denied the ineffective assistance of
trial counsel or that he did not knowingly waive his right to testify.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 14 of 15 [29] Affirmed.
May, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 Page 15 of 15